SUSILA BAI ANIMAL Vs. R K SETHURAMAN

JUDGEMENT

(1.) THE unnumbered revision petition with the connected C.M.P.S. is posted before this Court for deciding as to its maintainability. THE revision is filed by defendants 1 and 2 in O.S.No.55 of 1987 on the file of the Subordinate Judge, Pondicherry, on being aggrieved by an interim order passed by the Court below in I.A.No.891 of 1987 under Or.39, Rr.l and 2, Civil Procedure Code read with Sec.151, Civil Procedure Code. THE said order runs as follows: THE interim injunction is modified and restricted against sale, mortgage or make any alteration only in the suit properties pending enquiry in the I.A. This order is without prejudice to rights of parties in the suit. Call on 13.4.1987". THE petitioners challenged the said order on the ground that the Court below erred in not considering the counter affidavit filed by the second petitioner (second defendant) while continuing the earlier EX PARTE order which was granted without giving any reasons, and that the plaintiff has no PRIMA FACIE case for asking for injunction. As against the said order, they preferred the revision before this Court. THE Office returned the papers stating that the interlocutory application is kept pending that the petitioners can move the lower Court itself for setting aside the order, that any order passed under Or.39, Rr.l and 2, C.P.C. is only appealable and that the appeal will lie only in the District Court and not a revision in the High Court. Further, no revision or appeal lies against an interim order passed by the Court below.

(2.) LEARNED counsel for the petitioners relied on the decision of this Court reported in SUNDARAM PILLAI v. GOVINDASAMI, 97 L.W. 630: A.I.R. 1985 Mad. 199, and submitted that this Court interfered with the erroneous order of interim mandatory injunction passed by the trial Court and that the same principle is to be applied to this case also. On going through the said judgment, I find that the said decision is not applicable to the case of the petitioners. It is seen from para 8 of the said judgment that the effect of the impugned order is that the suit filed by the plaintiff substantially stands decreed on the very day on which the suit has been filed at the end of the day. Further, the learned Chief Justice came to the conclusion that the said order is perverse and has been obtained by suppressing material facts and as such interference under Sec.115, C.P.C. is necessitated to set aside the order which amounts to an abuse of the powers vested in the trial Court and that by one stroke of the pen of the learned Judge, the defendants have been summarily divested of the ownership of the shares in question of the value of more than Rs.10,00,000, Only in that view, the power under Sec.115, C.P.C. was exercised in view of the extraordinary circumstances of the case.

(3.) IT is also significant to note that Ratnavel Pandian, J. had an occasion to consider a similar question of maintainability of revision against the interim order in RAMALINGA NAICKER v. CHINNAKRISHNA KONAR, 96 L.W. 62, where it was held as follows: Held: admittedly in the present case, the party has not moved the trial Court, availing R.4 of Or.39. Therefore, the order against which the revision is now sought to be filed, is not a final reasoned order within the expression of the judgment in ABDUL SHUKOOR'S CASE, 89 L.W. 330: A.I.R. 1976 Mad. 350. The explanation given by the party for not moving the trial Court is that there was no presiding officer in the District Munsif Court at the relevant time for him to get a final order by filing a petition under Or.39, R.4, C.P.C. On verification from the office, it comes to light that a new officer has already taken charge as Disitrict Munsif even on 26th November, 1982, that is six days after the filing of this petition. Notwithstanding the above position, as under Sec.115(2), C.P.C. the High Court is debarred from varying or reversing any decree or order against an appeal lies either to the High Court or to any Court subordinate to it, this Court cannot interfere with the impugned order in question by entertaining a revision'.